Lethal weapons

The Hutton Inquiry underscores the importance of appropriately handling staff following disclosures of alleged unlawful activity. Employers should pay heed to the debacle’s damaging lessons.

When a radio news report casting doubt on some parts of the Iraq weapons of mass destruction (WMD) dossier was broadcast on a Thursday morning last year, few could have predicted the political and legal fall-out and personal tragedy that would follow.

The BBC report by Andrew Gilligan set in motion a chain of events that would eventually lead to the death of weapons expert Dr David Kelly and one of the highest-profile investigations of recent times.

The subsequent allegations, counter-allegations, speculation and huge publicity that followed provide a potent example of what can happen when management systems and procedures are examined in detail in the public arena.

Organisations such as the BBC, the Ministry of Defence (MoD) and the Civil Service all had their conduct and management procedures examined and questioned at the highest possible level.

Kelly was identified as the source of BBC allegations that contentions within the Government’s WMD dossier about Iraq’s capability to wage especially lethal forms of warfare in less than an hour had been exaggerated. After Kelly was found dead, the Hutton Inquiry was launched to determine if there was any wrongdoing by any of the organisations involved.

Although the Hutton Inquiry has no specific legal implications for most employers, it is a valuable example of what can happen when things go wrong, and raises questions about whistleblowing and disciplinary procedures.

Employers should pay heed to some of the debacle’s damaging lessons, says Robert Riley, a partner at law firm Addleshaw Goddard. “There are a host of lessons to be learnt around things like whistleblowing and the duty of care. There’s also a general theme about trust and confidence between employers and employees. Although the politics made this a unique case, and one most employers are unlikely to face, it brought issues facing UK firms into sharp contrast,” he says.

Riley believes that despite breaking departmental rules, Kelly was not managed properly in the aftermath of his ‘outing’ as Gilligan’s single source and, although the MoD was not to blame for his death, more could have been done to protect him.

“It seems to me that the general feeling was that Kelly was left out on a limb. There are some questions about the duty of care all organisations have for their people,” Riley adds.

The Public Interest Disclosure Act (PIDA) became law in 1998 to protect employees uncovering misconduct in the workplace or exposing corporate wrongdoing. It gives staff the right to make a disclosure if they believe unlawful activity has taken place and allows them to talk to the press if they feel they would be victimised by bringing it to the attention of their employer.

“The starting point for employers should be a general awareness of the legal obligations around whistleblowing and the way they discipline staff. There needs to be a clear set of guidelines and procedures for managers,” says Riley.

Steven Francis, a partner at law firm DLA, says Hutton emphasised the dangers of an employee unhappy with the way an organisation was operating and warned that employers must be careful to manage disclosures efficiently and consistently.

“There are huge numbers of practical issues around whistleblowing. It’s becoming a major issue for employers because disclosures can damage a company. Procedures must be in place to manage disclosures properly.

“The Hutton Inquiry, although an extreme and unique example, presents an interesting problem and a picture of what can go wrong,” says Francis.

Whistleblowing is becoming more important to business at a national and international level. The collapse of Enron and WorldCom, as well as last year’s European Union expenses scandal, have all raised the profile of whistleblowing, highlighting an increasing trend for employees to go public with their concerns.

“Last year was the year of the whistleblower and some of these cases showed that trying to rubbish allegations or the individual complaining was the wrong thing to do. I think there’s a wide sense among the workforce now that if something is wrong, a disclosure is ethically the right thing to do. I think people are much more willing to do that than they used to be,” Francis adds.

“In the post-Enron world, people are a lot more critical of their own organisations. The attitude where staff will blindly do what they’re told without question is gone.”

David Whincup, head of the London employment department at law firm Hammonds, says many employers are unsure of how to handle employees who decide to make a disclosure.

“Whistleblowing is here to stay and more individuals are going to do it. People are also using it as a defence against dismissal. The downside is that it’s a piece of legislation that can be abused,” he says.

“Technically, the truthfulness of the allegation is not that important – it’s the belief of the employee that it is correct. The worst thing an employer can do is circle the wagons – there needs to be an investigation, avoiding any knee-jerk reactions towards the employee making the complaint,” Whincup advises.

There is also the issue of employee care. Although Hutton stopped short of condemning how Kelly was dealt with by his employer, he said the MoD was at fault in the way the weapons expert was handled once his name became public.

The MoD’s personnel director Richard Hatfield insisted the department had acted properly and said there was no reason why he should have told Kelly it was planning to confirm his name to journalists.

He described the support offered to the weapons expert as “outstanding” and said with hindsight he would probably have suspended him.

Hutton largely upheld this account, although many experts were shocked that the judgment was so black and white.

Former BBC director general Greg Dyke, forced to resign because of the scandal, questions Hutton’s verdict that the MoD had properly cared for Kelly. “If that’s showing a duty of care I’m glad I don’t work there,” he says.

Stephen Levinson, head of employment law at Maclay Murray & Spens, says it highlights the importance of solid grievance and disciplinary procedures in dealings with staff.

“It emphasis the risk employers run if they don’t adhere to good practice in disciplinary matters. There’s an expectation that employers will carry out procedures with the least amount of personal injury,” says Levinson.

“Hutton has brought up certain situations that happen frequently in business, but this was obviously on a much more dramatic stage and complicated by political factors. Because of all the publicity, employees will have seen the situation and it will sharpen their minds as to their legal rights regarding the way they are treated. It will encourage them to complain if they feel treated badly,” he says.

The result of the recent Dunnachie v Kingston-upon-Hull case had made this even more crucial as it cleared the way for employees to claim for mental suffering or emotional stress as well as loss of earnings (see page 4).

“There has to be an increased emphasis on the way employers and specifically managers conduct disciplinary matters. In this particular case, there doesn’t seem to have been a co-ordinated approach from the employer,” says Levinson.

“The interesting thing was that Hutton seemed very reluctant to criticise the MoD, but he was clearly unhappy with Kelly’s treatment,” he says.

“It’s important that a company is seen to do the right thing. Disciplinary hearings should be diligently performed with all the notes written and kept. If a member of staff feels the need to make an allegation, it may be wrong or they may be mistaken, but it must be taken seriously,” Francis adds.

Political ramifications aside, employers must learn the lessons of the Hutton Inquiry and take in the wider implications for staff who are increasingly likely to disclose information outside the confines of their workplace.

Whistleblowing: the facts

Disgruntled ex-employees who make speculative claims against their former employers using whistleblowing rules are increasingly likely to fail after a recent legal decision.

The case involved an HR professional whose contract was terminated after only two days because the employer said it did not have sufficient confidence he could handle the assignment.

Paul Kraus claimed he was dismissed after warning the company that its plans to make staff redundant would contravene its legal obligations. But a tribunal struck out his claim, ruling it was misconceived. A subsequent appeal upheld the decision.

At the end of last year, the tribunal clarified that a disclosure had been made under the Whistleblowing Act, but rejected claims that the company’s redundancy plans would breach legal obligations.

Law firm Addleshaw Goddard says the case helped clarify the meaning of the regulations and would help prevent false claims being used against firms in the future.

Hutton report: key findings

The Government did not ‘sex up’ the Weapons of Mass Destruction dossier

Editorial control at the BBC was defective and BBC managers failed to properly investigate complaints

The MoD did take some steps to help Kelly but was at fault in the way it dealt with him when his name became public

The MoD failed to tell Kelly his name would be made public

Kelly’s meeting with Gilligan broke Civil Service rules

Timeline

29 May 2003: BBC journalist Andrew Gilligan reports that parts of the Government’s dossier on Iraq were ‘sexed up’

30 June 2003: Dr David Kelly writes to his manager to admit he had met with the journalist